Defame game

The most superior people in the country are at it. Minister for the Environment, Phil Hogan is suing the Mail over a couple of photographs taken in Dubai during Budget week, fellow minister James Reilly is suing the Mail over a false property development story, developer Paddy McKillen is in Dublin’s High Court suing a company connected to the Barclay brothers over the content of a press release, developer David Daly and the missus are suing the Independent over a story about spousal transfer of assets and combining both great professions, Michael O’Flynn recently concluded a defamation case with junior minister Lucinda Creighton over unkind words after a Fine Gael golf fundraiser, with poor Lucinda shelling out what was reported to be over €50,000 as a substantial contribution to Michael’s costs.

Yes, they’re all at defame game (though there’s a strong element of invasion of privacy in the Phil Hogan case).

This was the week when businessman Denis O’Brien was awarded €150,000 in damages at the High Court following a defamation case taken against the Irish Daily Mail after it published what it claimed was “an opinion piece” by journalist Paul Drury in January 2010 which portrayed Denis as a bit of a hypocrite in his efforts to help the Haitian people in the aftermath of the disastrous earthquake in 2010 which killed over 300,000 people in a country of less than 10m. At the time, there was speculation that the report of the Moriarty Tribunal would be published imminently and the Mail portrayed Denis as trying to act the saint to help deflect attention away from what was expected to be a damning report. The jury this week found that the article by the Mail was in fact “honest opinion” but was not based on facts proved to be true or facts that would have been known or which the author could have expected to be known by the reading public. The article was held not to have been in the public interest. The jury did not award aggravated damages. The legal costs of the case are not known, but are likely to be €500,000-plus and the latest is the Mail “is considering” an appeal.

The current edition of “The Phoenix” magazine reports another more modest Denis O’Brien victory against Munster newspaper, the Southern Star, whose anonymous columnist using the pseudonym Archon said some unkind things about Denis and Sam Smyth and there was a comparison between Denis and Rupert Murdoch. Denis extracted a contribution of €5,000 towards a charity from the newspaper, it is reported, and there was an apology.

According to the Courts Service, there are a number of pending applications involving Denis. There’s a 26th May 2011 application against Independent Newspapers (Ireland) Limited and journalist Sam Smyth. There’s a 28th April 2011 application against Penfield Enterprises Limited trading as The Phoenix and its editor Paddy Prendeville. There’s a 26th October 2012 application against Eamon Dunphy. And a 15th October 2012 application against Independent Newspapers (Ireland) Limited and columnist and governance expert, Elaine Byrne.

Indeed until the Monica Leech judgment in 2009 and the Donal Kinsella judgment in 2010, Denis held the record for an award for defamation in a case involving a 1998 article in the Mirror and its then-journalist Karl Brophy and unkind words about Denis and corrupt politician Ray Burke. Denis won €750,000 on appeal which until the €1.9m awarded to Monica in 2009 and the staggering €10m awarded to Donal in 2010, had been a record.

At this juncture, the media usually goes on a rant about free speech and the public interest. But as we saw during the week, some matters are held not to be in the public interest and free speech must be weighed with an individual’s right to their good name. In Ireland and the UK, defendants in defamation cases face further obstacles to what they claim is the right to free speech, in that in defamation cases, it is for the defendant to prove a statement or allegation is true. In other jurisdictions, such as the United States generally, it is for the plaintiff to prove a statement is false.

That’s an important distinction, and it was brought home by the recent decision of the publishers of a book about the Scientologists not to publish the book in either the UK or Ireland. “Going clear” by Pulitzer prize winning author, Lawrence Wright detailed what it alleged were the dirty nasties of the Scientologists towards its members. The Guardian writes “The legal advice was that Going Clear’s content was “not robust enough for the UK market,” they [Transworld, the publishers] say.”

So, on this Sunday, at the top of this blogpost is a select review of defamation cases in the last two decades.

Politicians feature heavily. Late last year, former Fianna Fail TD, Frank Fahey walked away with a “six figure” damages pay-out after allegations of tax evasion by the Mail. Mary Harney won €450,000 after being described as an alcoholic on Newstalk. Welsh resident, and former Fine Gael minister Ivan Yates won what was understood to be over €100,000 after a Sindo story connecting them to IRA criminality. Former Fine Gaeler Michael Lowry lost his case against Sam Smyth after the former Indo journalist had written about the North Tipperary TD’s past. Fianna Fail’s Beverley Flynn was spectacularly unsuccessful in her case against RTE and its correspondent, Charlie Bird and she finally paid €1.2m in costs which represented less than half RTE’s costs. Labour’s Prionsias de Rossa won IRL 300,000 after Eamon Dunphy made statements about Prionsias and criminal activity. Libertas founder Declan Ganley made the headlines earlier this year after a blogger and twitterer paid €50 to the (still) Poor Clare nuns and issued an apology after comments made on Twitter. Sinn Fein took a serious hit as a political party at the end of 2012 when a Northern Ireland employee of a state company was held to have been libeled in a Sinn Fein statement – the payout was €100,000 but the legal costs have been reported to be €500,000 which together represent a serious financial loss to that party.

Property developers have also been active in our courts. The glamorous Gayle Dunne, now a developer in her own right, won a case against the Daily Mail after a report involving allegations of phone hacking. Now bankrupt Peter Curistan won more than €60,000 after stories of him and the finances of the IRA was published by the Sunday World. Developer and greyhound enthusiast Paschal Taggart won €60,000 against the Irish Examiner. Estate agency boss Philip Johnston won a case against the Sunday World which had accused him of involvement in loyalist terrorism. The founder of the politics.ie website David Cochrane settled a case with a Kerry property developer when some comments were posted on the politics.ie website.

And there has been a soupcon of glamour in these cases with X Factor’s Louis Walsh winning €500,000 against the Sun last year after stories following the unfounded allegations of sexual assault in a night club toilet. Model Andrea Roche who was at one time a finalist in the Miss Universe competition won damages against the Daily Mail after allegations about the running of the Miss Universe competition. And former Miss World, Rosanna Davison won €80,000 damages from Michael O’Leary’s Ryanair after her claim that she had been unfairly portrayed as elitist and racist by Ryanair which had previous attacked her comments about non-Irish models appearing in a Ryanair publication. Ryanair was also on the losing side when EasyJet’s founder sued after he was portrayed as a Pinnocchio liar.

And finally we conclude with sex, crime and sex-crime. Probably the most expensive libel in recent times was the gross libel of Father Kevin Reynolds by RTE. The case was settled out of court but figures of €5m including legal costs have circulated. Father Reynolds was accused by the makers of Prime Time Investigates of abuse and fathering a child, and despite offering assurances before the broadcast including an offer of a paternity test, the broadcast went ahead. There was subsequently a clear out in RTE, a massive libel bill, a programme strand was decommissioned and there has supposedly been a tightening up in standards. The two biggest awards on record also have a sex element. Monica Leech was accused of sleeping her way to lucrative government contracts and she won €1.9m for her troubles and Donal Kinsella’s payout of €10m from Kenmare Resources was after mining company had issued a press release after Donal had appeared naked at a female colleague’s hotel room door whilst sleepwalking. Kenmare had suggested something inappropriate about the incident, and Donal demonstrated in court that he was a known sleep walker, who was in the habit of sleeping naked. Both the Leech and Kinsella payouts appear to be still subject to appeals.

One thing seems certain, defame game is unlikely to come to an end anytime soon.

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3 Responses

Well you have a much, much better chance of winning the “Defame Game” than you have of winning the National Lottery, so no surprise why it is such a popular sport. Of course, there is the preemptive strike benefit also. The logic runs, this will stop those b******s from messing with me. They will think twice about printing anything about me, even if they have checked their facts over and over.

I might be inclined to lament the freedom of the Irish press, but the reality is that their freedom is useless to use anyway. Even if this country did not have strict libel laws, I doubt that any of our newspapers would ever seriously tackle the power ascendancy. The reality is that Irish newspapers are enablers and defenders of corruption, when it is performed by the right people.

More seriously, we have a situation in this country where those who have committed misdeeds, who have broken the law, and who have abused the public trust can appeal to our courts to protect their “good names” should anyone attempt to report these facts. As I have said elsewhere, certain person have become notorious in Ireland sue to their involvement in deals and scandals which, while not deemed illegal, were nevertheless widely regarded as corrupt, or unethical, or wrong by most people. Nevertheless, these notorious individuals are still entitled to their “good name” under Irish state laws.

This isn’t a rule of law or a functioning freedom of expression. This is a dysfunctional legal status quo which exists to protect a small cadre of notorious people from public disapproval.

My suspicion is that the legal industry bears the lions share of responsibility for all of this, but it’s a convenient state of affairs for a much wider class of people.